Understanding the Clergy-Penitent Privilege

Not all conversations with a pastor are protected against future disclosure.

Church Law & Tax Report

Understanding the Clergy-Penitent Privilege

Not all conversations with a pastor are protected against future disclosure.

Key point 3-07.2. In order for the clergy-penitent privilege to apply, there must be a communication that is made in confidence. This generally means that there are no other persons present besides the minister and counselee who can overhear the communication, and that there is an expectation that the conversation will be kept secret.

The Connecticut Supreme Court ruled that statements made by family members in their pastor’s office were not protected by the clergy-penitent privilege since the circumstances precluded any reasonable expectation of confidentiality. A 14-year-old girl (the “victim”) resided with her mother and stepfather (the “defendant”). One afternoon, while the victim and defendant were watching a movie together at home, the defendant sexually molested the victim. The victim later entered her mother’s bedroom, curled up on the floor, and began crying. After several inquiries from her mother, the victim told her what the defendant had done. The mother immediately called the church. When a pastor returned her call, she repeated the victim’s allegations to him and they agreed that she and her daughter should come to the church and that the pastor would help them confront the defendant. After joining the meeting, the defendant initially denied any wrongdoing (“we were just fooling around”), but later admitted that the victim’s account was correct. The following day, the victim’s allegations were reported to the department of children and families (the “department”) and to the police.

The defendant was later charged with two felony counts. At his trial, the court permitted the pastor to testify concerning the defendant’s confession. The trial court found that statements made by the defendant in the pastor’s presence were not protected against disclosure by the clergy-penitent privilege because they were neither confidential nor made in the context of seeking religious or spiritual guidance or comfort from the pastor. The defendant was convicted and sentenced to 20 years in prison. The defendant appealed.

The state supreme court noted that, unlike in the family counseling sessions that the pastor occasionally conducted in his pastoral capacity, he did not begin this meeting by identifying the meeting as a family counseling session or explaining that statements made during the meeting would remain confidential. Rather, the meeting began when the defendant asked “What’s going on?” and the victim’s mother responded by asking whether he had touched the victim inappropriately. The meeting proceeded with the mother repeatedly asking the defendant whether he had touched the victim in certain ways. The defendant initially denied the accusations, but eventually admitted to them. At that point, the pastor asked the defendant whether he had anything to say to the victim. The defendant offered a curt apology, bringing the meeting to a close.

The pastor testified that he did not offer any other advice or suggestions during the meeting. Rather, pursuant to the mother’s request, he saw his role as offering his support and just “sitting there to listen to what the two of them had to say, basically.” The following day he informed the mother that either she or he would need to report the victim’s allegations to law enforcement or the state within twenty-four hours, because, as a pastor, he was a mandated child abuse reporter.

The Connecticut clergy-penitent privilege provides:

A clergyman, priest, minister, rabbi or practitioner of any religious denomination accredited by the religious body to which he belongs who is settled in the work of the ministry shall not disclose confidential communications made to him in his professional capacity in any civil or criminal case or proceedings preliminary thereto … unless the person making the confidential communication waives such privilege herein provided.

The supreme court agreed with the trial court that the statements the defendant made to the pastor were not privileged because they were not confidential. It based this conclusion on two considerations:

First, it is undisputed that the meeting lacked many of the indicia of confidentiality that characterize traditional individual and family counseling sessions. The pastor never stated that the meeting was confidential. After he and the defendant arrived, he allowed his office door to remain open throughout the meeting …. Additionally, under the circumstances, the defendant could not reasonably have believed that the mother and victim would keep his admissions in confidence because she interrogated the defendant in order to obtain an admission from him, rather than engaging in any sort of private reconciliation process typical of family counseling.

Second, the record does not support the defendant’s assertion that the meeting was the sort of family counseling session that might implicate the clergy-penitent privilege. Aside from agreeing to host the meeting in his office and bringing the defendant there, there is no indication in the record that the pastor assumed a leadership role. He did not schedule the meeting to begin or end at a set time, establish any ground rules, open the conversation or draw it to a close; indeed, the defendant did not even know the reason he had been called to the pastor’s office. In short, the pastor did not imbue the meeting with any of the trappings of a family therapy arrangement.

Rather, it is undisputed that the mother requested the meeting, selected the location, initiated the confrontation, and ultimately succeeded in persuading the defendant to admit to his inappropriate conduct. Furthermore, there is no indication in the record that the defendant ever spoke directly to the pastor about his conduct toward the victim, or that the pastor spoke to him about his behavior. At most, he simply tried to help the mother remain calm. Accordingly, he served more as a neutral bystander to an ad hoc confrontation than as an active facilitator of a family therapy session, and there is no reason why his mere presence should transform the defendant’s admissions into privileged communications.

We therefore conclude that the trial court properly determined that, because the defendant lacked a reasonable expectation that his inculpatory statements would be held in confidence, he failed to establish that the clergy-penitent privilege protected those statements from disclosure. Accordingly, we conclude that the pastor’s testimony was properly admitted.

What This Means For Churches:

Not all conversations with a pastor are protected against future disclosure in court by the clergy-penitent privilege. While the definition of this privilege varies slightly from state to state, it is generally acknowledged that only confidential communications made to a pastor acting as a spiritual advisor can be privileged. Some states prevent the privilege from applying to conversations made in the presence of third parties, either because they are not confidential, or speaking to a pastor in the presence of third parties amounts to a waiver of the privilege. It is essential for pastors to be familiar with their state law to be sure they understand the significance of a third party being present when speaking with another. State v. Mark R., 17 A.3d 1 (Conn. 2011).

This Recent Development first appeared in Church Law and Tax Report, March/April 2012.

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